Ernestina Espinoza v. Hector De La Garza ( 2012 )

NUMBER 13-12-00218-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ERNESTINA ESPINOZA, APPELLANT,
v.
HECTOR DE LA GARZA, APPELLEE.
____________________________________________________________
On appeal from the County Court at Law No. 1
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion Per Curiam
Appellant, Ernestina Espinoza, attempted to perfect an appeal from a judgment
entered by the County Court at Law No. 1 of Cameron County, Texas, in cause number
2008-CCL-0862-A. We dismiss for want of jurisdiction.
Summary Judgment in this cause was signed on December 14, 2011. A motion
for new trial was filed on January 13, 2012, and was denied by the trial court on March 6,
2012. Appellant filed a notice of appeal on April 2, 2012, stating she was appealing from
an order dated March 6, 2012. On April 10, 2012, the Clerk of this Court notified
appellant that it appeared that the order was not appealable. In response, appellant filed
an amended notice of appeal on April 17, 2012, citing the order from which she was
appealing was dated December 14, 2011.
On May 7, 2012, the Clerk of this Court notified appellant that it appeared that the
appeal was not timely perfected. Appellant was advised that the appeal would be
dismissed if the defect was not corrected within ten days from the date of receipt of the
Court=s directive. On May 18, 2012, appellant filed an unopposed “Response to Court
Communication and Alternatively, Motion for Extension of Time to File Motion for
Extension to File Notice of Appeal.” Appellant requests that this court consider her
appeal timely filed from the March 6, 2012, order or, alternatively, grant an extension to
file the notice of appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the judgment is signed, unless a motion for
new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial or
motion to reinstate has been filed, notice of appeal shall be filed within ninety days after
the judgment is signed. TEX. R. APP. P. 26.1(a).
A motion for extension of time is necessarily implied when an appellant, acting in
good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the
fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time.
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See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997) (construing the
predecessor to Rule 26). However, appellant must provide a reasonable explanation for
the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins,
140 S.W.3d 462, 462 (Tex. App.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567
(Tex. App.BWaco 2002, no pet.).
Texas Rule of Appellate Procedure 26.1 establishes the deadline for filing a notice
of appeal based on the date that the judgment was signed and not from the date a motion
for new trial is denied. See TEX. R. APP. P. 26.1(a). Pursuant to Texas Rule of
Appellate Procedure 26.1, appellant=s notice of appeal was due on March 14, 2012.
Although appellant has responded with an explanation regarding her late filing of the
notice of appeal, appellant’s notice of appeal was filed beyond the fifteen-day grace
period provided by rule 26.3.
The Court, having examined and fully considered the documents on file and
appellant=s failure to timely perfect her appeal, is of the opinion that the appeal should be
dismissed for want of jurisdiction. Appellant’s motion for extension of time to file notice of
appeal is DENIED. Accordingly, the appeal is hereby DISMISSED FOR WANT OF
JURISDICTION. See TEX. R. APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
28th day of June, 2012.
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